Talmud Ethics Justice Lesson 4 
Underneath the Law

Study Guide – Lesson 4 – Underneath the Law     Let’s begin today with a brief review of what we are exploring in this section of the Talmud. Remember all of this is happening in a particular era of the evolution of Judaism that represents an ongoing transition from earlier emphasis on a central temple and it’s priests and sacrifices to an increasing emphasis on a deep study of scripture to better understand what the Torah was teaching.  

The situation changed most drastically with the destruction of the Jewish commonwealth and temple in 70 CE leading to an upheaval of Jewish social and legal norms.   Much of the Jewish scholarship was oral at this time. Sages debated the meaning of the laws of the Torah without the benefit of written works other than the Torah itself. But the Sages were now facing a new reality—mainly Judaism without a Temple (to serve as the center of teaching and study) and Judea without at least partial autonomy—there was a flurry of legal discourse and the old system of oral scholarship could not be maintained.

It is during this period that rabbinic discourse began to be recorded in writing. The earliest recorded oral Torah may have been of the midrashic form, in which  discussion is structured as commentary on the Torah. But an alternative form, organized by subject matter instead of by biblical verse, became dominant about the year 200 CE, when Rabbi Judah the Prince developed the Mishnah as a written compilation of Oral Torah. The Mishnah, unlike midrashim writings, is organized by subject matter rather than following the sequence presented in the Torah.   The Mishnah is generally considered the first work of rabbinic literature. Over the next four centuries this body of law, legend and ethical teachings underwent debate and discussion (Gemara) in the two centers of Jewish life, Israel and Babylonia.   The Gemara with the Mishnah came to be edited together into compilations known as the Talmud. The distinctive character of the Talmud derives largely from its intricate use of argumentation and debate. All of our readings will come from the Babylonian Talmud.

The Mishnah consists of 6 orders (discussed below), each containing 7-12 tractates, for a total of 63 tractates.  The 6 orders are: Zeraim ("Seeds"), dealing with prayer and blessings, tithes and agricultural laws (11 tractates) Moed ("Festival"), pertaining to the laws of the Sabbath and the Festivals (12 tractates) Nashim ("Women"), concerning marriage and divorce, some forms of oaths and the laws of the nazirite (7 tractates) Nezikin ("Damages"), dealing with civil and criminal law, the functioning of the courts and oaths (10 tractates) Kodashim ("Holy things"), regarding sacrificial rites, the Temple, and the dietary laws (11 tractates) and Tohorot ("Purities"), pertaining to the laws of purity and impurity, including the impurity of the dead, the laws of food purity and bodily purity (12 tractates).  

Our study in these classes is focused on Nezikin (damages). We are dealing with civil and criminal law, and the functioning of the courts and importantly, learning’s of human ethics and morality that flow from these ideas of law.   Today we are using the title “Underneath the Law” to emphasize that under these surface laws there are many things that we can learn to guide our ethical life and our interactions with our friends and neighbors.   So let’s begin.

We will be reading from a tractate called Sanhedrin. We have divided it into 9 portions.   In portion 1 we open with a statement from the Mishnah discussing the liability for a loss when a person causes a fire that spreads and causes damages. This comes from Exodus. (--If a fire shall go forth and find thorns, and a stack of grain or the standing grain or the field is consumed, the one who kindled the blaze shall surely pay.)  

It then creates a fine opportunity to understand the basic principles of law and justice, the care we owe each other, the degree of responsibility we have for any damage we might cause, how and when we need to make the victim whole, and as mentioned earlier, how the idea of “spreading a fire that causes damage” has broader meaning in the ethics and morality of how we are to live in God’s way.   The Gamara immediately asks a question about this : Why do I need the Merciful One to write in His Torah:  —“thorns, stack of grain, standing grain and field?”  It then goes, as you can see, into a complex argumentation about why it may have been written that way.  

It is interesting that God is described as the Merciful One. The implication seems to be that when and if we are doling out justice, it should be done in a merciful way.    (God's mercy is at the heart of the demands of justice.  We care about how people are treated by each other in our community, and we pay special attention to when, how, and by whom they might be hurt, and that there's accountability to them when they are. We also are to feel mercy toward the accused, which, in turn, creates a balance of concern for fairness and the facts in assuring that liability is not wrongly assessed. This concern is grounded in the Divine quality of mercy, which we show when we are concerned ourselves.

Now Read Portion 2 Let's review this.  Rava asks why damage to  thorns, stacks, standing corn, and open fields are all mentioned as triggering liability and restitution when one causes a flame to spread which does damage to these things.  

FIRST LEVEL - what do the items on this list represent, and why are they each mentioned? THORNS - something that commonly is consumed through fire and for which people are commonly careless. STACKS - something that is not commonly on fire, something for which negligence is not usual (thus, suggesting the possible basis not to find liability), though something whose loss would be great. We learn that both are mentioned because the loss of each is intended to trigger liability. STANDING CORN - typically in an open place, so that damage to anything in an open place, anything one can see,  would trigger liability.

Read Portion 3 Rabbi Judah says there's liability for concealed things. Why? (The person who caused the fire should be responsible for things he can't see? This, Judah adds to the idea in Exodus, the idea in the Mishnah. Do you agree to his "addition"? Why or why not? So, if Judah is right, the next question: why is standing corn mentioned explicitly?   (To include anything that stands, that is attached to the earth, even trees and animals.) The question then arises: why the division? Payments are due for any of these that might happen whether alone or simultaneously.  Then questions are asked and answered about why "field" is discreetly mentioned and why it would have been insufficient to have only used the term, "field." First summary: What's the effect of all this? What does this micro-exercise in the law teach us about justice?  

(We're dealing with people who have freedom of choice and action. Here such a person ca uses a disaster through letting loose the power of an elementary force that does serious dam age, even mutiplying damage beyond  reason. Even though the fire goes way beyond what one could have expected, free people have the responsibility to understand the potential power of the elementary force of fire (including its propensity to get out of control, with or without the upsurge of wind ). And they must be accountable for a broad spectrum of damage. Thus, the discussion among the sages sort of races in its own sort of melody to a very expansive notion of liability, but only by going through several types of property that, if damaged by fire caused and "sent" by the offender, ought to give rise to liability.

This doesn't mean that al l fires causing any damage will give rise to liability. There are indeed several instances that follow in the tractate where liability is not imposed, especially where the damage is too remote or not proximately caused by the fire.   This discussion has both the feel of the working out of halakhah, of how the law would actually work, but also grounded in principles of justice that have an element of mercy, that is, a super sensitivity for the victim of grossly negligent inattention by another but also concern for limiting responsibility for parties that are too remote to be liable.)  

SECOND LEVEL - we move from Juridical to moral/religious.   The Talmudic discussion appears to go to a deeper level. Does It extend to a particularly virulent and broader form of "an uncontrollable fire," such as war? Rabbi Simeon bar Nahmani wants to take it further. Let's read it and then take his comment bit by bit.  

Read 4.   Calamity in the world starts with what? Wicked people. So, what do they do? Start a "fire" purposely or out of gross negligence.   What do the thorns represent?   ( Maybe things that metaphorically or literally are easily consumed by fire, but things we don't worry much about being burned or conveying fire, yet things that border on and can convey to other more valuable objects. Are these the highly cultured in a society whose grounding in culture is stronger than their ethics? Are these norms and ways of comfort that break down and "burn" when times get difficult? Things (or mores) that are present as the fire gets started ?

The thorns are in this narrative, in these facts, indispensable to carrying  the fire (as if it's a sort of fuel or transfer agent)  to that which is damaged first, the stacks, the righteous.  But it's the stack that is consumed first. And the stack? Recall the stack is not thought typically or worried about to be vulnerable to fire but is of great value. How does the sage liken this to righteous people? What does that mean?   (Levinas says it's social evil that contains within it the force of war.

The "righteous may have not been righteous enough to make their righteousness spread and abolish injustice, sort of the "good people" who don't stand up and stop the fire when it could be stopped. And these people are often the first victims. His thought is grounded in the Biblical view, which we will touch on i n a moment that the good, likely but not clearly not good enough, get swept up, too, when God brings about destruction beca use of wickedness.   OR it could simply be that the righteous are typically and tragically the first victims of fire, which here is metaphorical of evil or wickedness?   There's both reason and unreason in this discussion. But isn 't that the case with uncontrollable forces, war, and the like?...M aybe even rash and dangerous emotions.    

Why do you think this discussion follows on a legal sort of ruling about liability for spreading fire and causing damage? And what does this discussion mean ? Where does it lead us?   (Once we unleash or allow to be unleashed forces like fire (or wicked ness) that have a spread ing, damaging nature, the effects can be disastrous to person and property or community. The Jaw and our ethics must be constructed to understand t his, to create rules to prevent it and pu nish it, if it occu rs, and to compensate the victims. The order and health and safety of our community and all with i n it depend u pon our doing so. It's a legal matter to be sure. It's a justice  matter, too. But this discussion at the second level shows deeper truths that relate to a ll sorts of ways we live within ourselves and with others.

Further, facts matter! The administration of justice - which helps us l ive as God expects - depends upon understand ing the facts and adherence to certain pri nci ples in applying them. It requires "getting into the weeds."       Perhaps this is why we say justice, justice. At one level, justice is a noble goal. It's what we should strive to achieve in society. But then there's "the second justice,"  like the law or ethics that one understands somewhat metaphorically from the law that require for understanding and use ha rdwork, and details, and the appl ication of princi ples to different circumstances. Th is is what we see at work in the Talmud!!                     

Talmud Ethics Justice Lesson 4      Underneath the Law

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